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United Indus. Workers, Service, Transp., Professional Government of North America of Seafarers' Intern. Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dist. AFL-CIO, (Local No. 16) on Behalf of Bouton v. Government of Virgin Islands

filed: February 12, 1993; As corrected February 18, 1993.

IN THE MATTER OF THE ARBITRATION BETWEEN UNITED INDUSTRIAL WORKERS, SERVICE, TRANSPORTATION, PROFESSIONAL GOVERNMENT OF NORTH AMERICA OF THE SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT AFL-CIO, (LOCAL #16) O/B/O DONALD M. BOUTON
v.
GOVERNMENT OF THE VIRGIN ISLANDS, V.I. DEPARTMENT OF JUSTICE (FORMERLY DEPARTMENT OF LAW) UNITED INDUSTRIAL WORKERS, SERVICE, TRANSPORTATION, PROFESSIONAL AND GOVERNMENT OF NORTH AMERICA OF THE SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC GULF, LAKES AND INLAND WATERS DISTRICT AFL-CIO (LOCAL #16) O/B/O DONALD M. BOUTON, (HEREINAFTER REFERRED TO AS "BOUTON"), APPELLANT



On Appeal from the District Court of the Virgin Islands. (D.C. Civ. No. 90-00300).

Before: Becker, Cowen And Roth, Circuit Judges.

Author: Cowen

Opinion OF THE COURT

Cowen, Circuit Judge.

Donald Bouton, a government employee discharged for persistently violating the dress code, filed a complaint alleging that he was wrongfully terminated for failure to comply with an illegal directive. He appeals the arbitration decision that dismissed his complaint on the grounds that he was not covered by the applicable collective bargaining agreement ("CBA"). Although the CBA authorized a government agency to clarify the scope of the agreement's coverage, the arbitrator also possessed jurisdiction to resolve this dispute because Bouton agreed to submit the conflict to the arbitrator and impliedly waived his right to object to the arbitrator's authority. The record supported the arbitrator's decision that the CBA did not cover Bouton. Finally, the arbitrator's award was complete, and the arbitrator did not demonstrate any bias against Bouton. We therefore will affirm the district court's decision that affirmed the dismissal of the complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1978, the Virgin Islands Department of Law*fn1 hired Donald Bouton as an Assistant Attorney General and soon promoted him to First Assistant Attorney General. Approximately one year after his elevation, Bouton was appointed Attorney General and served in this capacity for several months until the legislature ultimately declined to confirm his appointment. In August of 1986, Bouton was appointed to the newly created position of Hearing Officer in the Paternity and Child Support Division. Hearing Officers, appointed by the Governor for four-year terms, conduct hearings and render binding decisions in paternity and child support cases.

Approximately a month after his appointment, Bouton wrote to the then Attorney General, Leroy Mercer, to propose terms for his acceptance of the position. He asked to be placed on a leave of absence, which would allow him to return to his position as an Assistant Attorney General if and when a vacancy occurred, after his term as a Hearing Officer expired. The Attorney General wrote "Agreed" on this letter, initialed the document and returned a signed copy to Bouton. Although he acquiesced to Bouton's conditions of acceptance, the Attorney General had no authority to bind either the Governor or future Attorneys General. Additionally, the Seafarers International Union ("Union") was the exclusive bargaining representative of the Assistant Attorneys General, and the Union's collective bargaining agreement with the government proscribed leaves of absence in excess of one year.

In January of 1987, Godfrey de Castro assumed the position of Attorney General. To improve the image of the Law Department, he immediately issued a directive requiring all male professional employees to wear a coat and tie at work.*fn2 Bouton refused to comply with the new dress code. Bouton's supervisor orally notified Bouton about the policy and told him that he must comply. Bouton subsequently received several written warnings informing him that disciplinary action would be taken if he continued to violate the dress code. Bouton persisted in his refusal to conform his attire to the directive.

Bouton filed a grievance pursuant to the CBA alleging that he refused to follow the dress code because (1) the office was hot and without air conditioning; (2) compliance would reduce his productivity; (3) the rule violated the collective bargaining agreement because the Union had not been consulted; and (4) the rule discriminated against men. The government explicitly reserved the issue of Bouton's membership in the Union and scheduled a hearing to address the grievance. At the hearing, Bouton did not introduce any evidence to support the reasons for his refusal to follow the newly instituted dress code. He did argue, however, that he was covered under the Union's collective bargaining agreement.

The recognition clause of the CBA explicitly included Assistant Attorneys General and excluded the Attorney General, First Assistant Attorney General and Chiefs of Divisions. The CBA did not mention Hearing Officers, but stated that the parties jointly will petition the Public Employees Relation Board ("PERB") for a clarification concerning whether the bargaining unit includes attorneys employed by the executive branch, other than Assistant Attorneys General. To support his assertion that he was included under the CBA, Bouton presented evidence that the Union deducted dues from his salary while he was a Hearing Officer and never removed his name from its seniority list.

The grievance was denied on the ground that Hearing Officers were not covered under the CBA. The Attorney General, who presided at the hearing, concluded that even if the CBA covered Bouton, decisions regarding appropriate attire are reserved for management because the CBA does not address this subject. The Attorney General also found that requiring men to wear a coat and tie, traditional male business attire, was a reasonable exercise of managerial discretion.

Following the denial of his grievance, Bouton continued to disregard the directive and was fired for continued insubordination and conduct unbecoming an employee. Bouton filed an action in the Territorial Court seeking reinstatement. Both his complaint and his amended complaint requested that the court compel the government to submit the issue of his dismissal to binding arbitration. The Union, representing Bouton, sent a demand for arbitration to the Attorney General. At the time the demand for arbitration was made, neither the government nor the Union had filed a petition with PERB for clarification as to whether attorneys in the executive branch, other than Assistant Attorneys General, are covered by the CBA. The Government refused voluntarily to submit the propriety of Bouton's dismissal to arbitration because it contended that Bouton was not covered by the CBA. Nevertheless, on April 8, 1987, the Territorial Court referred the dispute to binding arbitration for resolution. The Union, which had requested the arbitration, obviously did not object to arbitrating the conflict.

On June 26, 1987, Bouton filed an unfair labor practice complaint against the government with PERB alleging that the dress code was unreasonable, discriminatory and violative of the CBA. The Union intervened on behalf of Bouton. In response, the government filed a motion for declaratory judgment asking PERB to announce that Bouton is not a member of the bargaining unit. The government also docketed its own action with PERB seeking a clarification that the Union's bargaining unit excludes attorneys employed by the executive branch other than Assistant ...


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